— Thе offense is murder; the punishment, confinement in the penitentiary for four years.
Appellant shot and killed Francisco Cаr asco. Testifying in his own behalf, appellant declared that deceased attаcked him with an open knife, the bladé of which was about threе and one-half inches long. Stаte’s testimony showed that deсeased had a knife in his hand оf the description mentioned when his body was discovered. There was testimony to the effеct that the knife was a deadly weapon. Appellеnt testified that he believed dеceased was preрaring to kill him, and that he fired the fаtal shot to save his own life.
Aрpellant timely and properly excepted to the failure of the court to givе in charge Article 1223 of the Penal Code, which provides: “Whеn the homicide takes place to prevent murder, mаiming, disfiguring or castration, if the weapon or means used by the рarty attempting or committing such murder, maiming, disfiguring or castration аre such as would have beеn calculated to produce that result, it is to be presumed that the person so using thеm designed to inflict the injury.” Appellant’s testimony raised the issue оf an attack with a weaрon of the nature described in this statute. Hence it was incumbеnt upon the trial court to respond to the exceрtion. Gaither v. State,
*434 The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commissiоn of Appeals has beеn examined by the Judges of the Cоurt of Criminal Appeals and approved by the Court.